Bialik may have protested in “halakhah and aggadah” that aggadah had become too dominant in his day, but for countless generations it was halakhah that possessed greater gravitas, thanks to the geonim and their successors.Footnote ¹ Bialik was onto something, however, since even he succumbed to the power of aggadah—his most popular work was Sefer Ha-Aggadah. In the contemporary academy, aggadah continues to flourish. The encounter between midrash and literary theory in the 1980s, and between talmudic aggadah and stam-oriented source criticism in the 1990s and today, have firmly secured aggadah's territory on the academic map.Footnote ² Some aggadot have been scrutinized by so many scholarly eyes—the oven of Akhnai, the heresy of Elisha ben Abuya, the partnership of Rabbi Yoḥanan and Resh Lakish—that they seem to constitute a new Jewish core curriculum.Footnote ³

What then of halakhah, the object of Bialik's concern? He may have been onto something there too. More than a handful of recent works on classical rabbinic halakhah have been inspired most by its aggadic features—Barry Wimpfheimer on talmudic legal narrative, Moshe Simon-Shoshan on the Mishnah's narrativity, Naftali Cohn on its ritual narratives, Jane Kanarek on biblical narrative in rabbinic law, Yair Lorberbaum on halakhah's aggadic underpinnings—suggesting that halakhah may now depend on aggadah for its fortunes within the academy.Footnote ⁴ A reader familiar with any of these works will immediately interject that these texts are all bent on deconstructing the dichotomy, just as Bialik was. The conferences convened at Yale and Harvard Law Schools and the volumes that emerged from them, the first on Robert Cover's “Nomos and Narrative” and the second on halakhah and aggadah, make it clear that the binary has now been fully historicized and forever problematized.Footnote ⁵ Nevertheless, the categories continue to operate even while they have been complicated, and the competition these days seems to be favoring aggadah, with law having lost some of its intellectual luster. The burden on law to find its place in the cosmos of Jewish studies is made particularly heavy by politics, and not just the academic kind. Differences over halakhah—both subtopics within as well as an overall philosophy of—tend to get ugly. The politics of aggadah are more subtle, almost by definition.

But it is precisely the bloodiness of law that makes it distinctive, as Robert Cover's “Violence and the Word” (his sequel and, as he describes it, correction to “Nomos and Narrative”) articulated with unforgettable and chilling simplicity: “Law takes place in a field of pain and death.”Footnote ⁶ For Cover and others, law's violence raises existential questions about legal interpretation and legal change, which entire academic fields such as legal formalism and legal realism have emerged to explain. How is law made (or found)? What (and whose) purposes does it serve? And how is it connected to everything else, especially power? Some of the thinking surrounding these questions has been brought to bear on classical rabbinic halakhah, most notably in Moshe Halbertal's Interpretive Revolutions in the Making and Christine Hayes's and Adiel Schremer's emerging projects on rabbinic jurisprudence.Footnote ⁷ Aaron Panken in his Rhetoric of Innovation and Chaya Halberstam in her Law and Truth in Biblical and Rabbinic Literature also wrestle with the early rabbis' legal self-awareness, along with Wimpfheimer, Simon-Shoshan, Kanarek et al. mentioned above.Footnote ⁸ Bernard Levinson asks these questions for the Bible, as do the scholars he profiles in his Legal Revision and Religious Renewal in Ancient Israel. Footnote ⁹ Medieval and modern Jewish legal literature — including responsa, codes, and commentaries — has perhaps generated the most sustained reflection on the dynamics of lawmaking (with Jacob Katz as the towering figure), if only because there are individual historically verifiable lawmakers to discuss, a luxury scholars of biblical Israel and ancient Judaism do not generally share. Yet the encounter between legal studies and Jewish studies still feels inchoate and probably always will, since as is inevitably the case in Jewish studies, the scholar must master entirely divergent areas of expertise, and Jewish studies scholars at the end of the day tend to be more interested in their Jewish texts than in the handmaiden fields they visit.

Aharon Shemesh's two monographs, Halakhah in the Making and Punishments and Sins, furnish us with some tools for defining and explaining legal change in Jewish antiquity and, in the process, retaining and revivifying classical rabbinic halakhah as an avenue of intellectual inquiry, fulfilling Bialik's mandate though perhaps not in quite the way he intended. Halakhah in the Making does so on the macro scale, Punishments and Sins on the micro. Both are dedicated to illuminating the mechanics and cultural contexts of halakhic texts, and both are interested in how authors of Second Temple period and rabbinic legal texts construct their own authority as transmitters and interpreters of canonical legal traditions.

Shemesh's unique contribution is his reconstructive method: He isolates a legal conception in the Dead Sea Scrolls, contrasts it with the legal conception found in tannaitic texts, and then succeeds in explaining heretofore perplexing passages in the tannaitic texts as representing traces of the earlier conception that were never fully eradicated. A variant of this method occurs when Shemesh isolates an earlier rabbinic conception and a later one, enabling him to explain what appears to be an internal contradiction or ambiguity within the rabbinic texts or a manuscript variation that most scholars have discarded as incorrect. There are moments in the two books when one feels that he may be building overly complex edifices on top of relatively brief teachings or over-reading a Mishnah to find marginal traditions buried there. The structuralism of his method, which tends to outline two opposing viewpoints within the texts, at the hands of a less careful reader could produce a reductive parallelomania. Moreover, the evolutionary schemes that Shemesh often proposes—one conception will be deemed earlier, one later—can easily say more about the scholar's notion of progress than they do about history itself (unless, of course, the scholar has evidence from prerabbinic texts, which Shemesh often does). Tensions within texts are not always the result of legal change, however; they can sometimes represent a synchronic culture clash, or even one author's ambivalence. These caveats notwithstanding, Shemesh's “archaeology” will no doubt become an essential method in the historiographical and hermeneutical toolkit of scholars of ancient halakhah.

Halakhah in the Making is based on the Taubman lecture series in Jewish studies at the University of California, Berkeley, which Shemesh gave in 2005. Previous volumes of Taubman lectures—by Moshe Greenberg, Dan Pagis, Galit Hasan-Rokem, among others—have afforded some of the finest scholars of Jewish studies an opportunity to step back and to capture with elegant conciseness the themes that inspire their work and to make them accessible to a broad audience. This volume by Shemesh carries on the tradition. The conceptualization of ancient Jewish law that Shemesh offers here did not precede his numerous studies from the last fifteen years, readers will sense, but emerged from sustained reflection on their results.

Shemesh's introduction lays out two models that scholars have devised for explaining halakhic differences between the Dead Sea Scrolls and the early rabbinic corpora that emerged two centuries later. According to the first model, which Shemesh calls “developmental,” the Dead Sea Scrolls represent old legal traditions, while rabbinic halakhah marks a post-70 CE innovation. The second model, which Shemesh calls “reflective,” proposes that a legal difference between the Dead Sea Scrolls and rabbinic texts reflects not a later revision but a preexisting dispute in the Second Temple period between Sadducees and Pharisees (or even a dispute going back to biblical times). Shemesh's own view, which he illustrates with the law of fourth-year fruits, is that some laws are accurately described by one model and some by the other, and in some cases the two models interact.

A complicating factor for both models is legal divergence not just between the Dead Sea Scrolls and rabbinic corpora but within each one. There is no such thing as “the rabbinic halakhah” or “the Qumran halakhah,” though Shemesh proposes that legal diversity characterizes rabbinic law more so than it does Qumran writings, which present a relatively unified front on halakhic subjects. Not only the diversity of texts but also the diversity of sects complicates the history of halakhah. Shemesh identifies the authors of Qumran writings as Essenes but maintains that their writings sometimes represent the position of the Sadducees as well. There is also the much-discussed link between the Pharisees and the rabbis, and at the end of the day it is difficult to determine how these historical questions map onto the explanatory models that Shemesh has laid out. One wonders if scholars were to develop models designed not solely to explain halakhic differences but rather to situate halakhah within its broad, shifting social matrix, would the models be more satisfying, if less elegant?

Chapter 1 describes two legal genres at Qumran: “rewritten Bible,” typified by the Temple Scroll, and topical “halakhic writing,” typified by the Damascus Document. The Temple Scroll type presents its law as Torah; its authority is self-justifying. The Damascus Document type instead refers to Torah; the authority for its law lies in the canonical text upon which it comments. Some Qumran compositions combine the two types; Shemesh takes 4Q251 to be an example of this. The very texts that typify each model at times use the methods of the other: The penal code of the Damascus Document, which Shemesh discusses in some detail, follows the order of biblical verses, a trait Shemesh associates with the opposite Temple Scroll type. Shemesh does not abandon the two types as a result but invites us to see just how multifaceted is the relationship between Qumran law and the Hebrew Bible.

Chapter 2 uses the case of the false prophet to define the major differences between midrash and mishnah on the one hand and the legal writings at Qumran on the other. Deuteronomy 18 warns Israel against the false prophet but does not reveal how to recognize one. The respective means furnished by the Qumran authors and the rabbis for detecting a false prophet speak to the fundamental theological divergence between them, which ripples through all of their legal writings: The Qumran sectarians believe that their halakhah emanates from God and has divine authority, while the rabbis see their halakhah as the product of human activity. Shemesh argues that we can still see traces of the “old” Qumran viewpoint in certain rabbinic passages and proposes that in practice the gap between the two groups was probably smaller than the rhetoric would suggest.

Chapter 3 compares the sectarians and the rabbis on the question of which source of law has greater authority, scripture or inherited norms. Shemes proposes that Qumran adopted the ideology of sola scriptura. The irony that emerges in the case of Qumran—and in other reform movements—is that a return to scriptural origins often entails legal innovation. Shemesh gives sustained attention to the question of uncle–niece marriage to argue that the Damascus Document's prohibition on such marriages represents just such a newly imposed Sadducean taboo that ran against the custom of the time and that sectarians claimed to be anchored in scripture. The Pharisees took a position, for this case and for many others, that is both more socially permissive and less firmly anchored in scripture. Rabbinic law stays the Pharisaic course, but a funny thing happens along the way, first for the Qumranites and later for the rabbis: The exegetical techniques that start out as a strategy for legitimating the law turn into tools for generating new laws, and they eventually become a straitjacket of their own, requiring every law to meet their scriptural standards. What we find, to our amazement, is that the Dead Sea sectarians prove more “rabbinic” than the first rabbis were; innovative exegetical techniques developed among the sectarians before they did in rabbinic circles, where loyalty to inherited legal traditions persisted longer. Shemesh's suggestion is stunning, but the “cultural and religious chain reaction” (105) he describes, from scriptural legitimation to generation to domination, feels schematic, even while its sharpness makes it an invaluable tool for organizing the mass of ancient Jewish legal data that we possess.

The theological underpinnings of Qumran's text-based religiosity are revealed in Chapter 4. Shemesh here uses Daniel Schwartz's distinction between the sectarians' “realistic” conception of law—law responds to an independent reality—and the Pharisees' (and later the rabbis') “nominalistic” one—law creates its own reality. Shemesh proposes that according to Qumran “realism,” reality reflects the law because God created the world according to the law. Formulating Qumran's theology in this way allows Shemesh to explain its laws of marriage, which in his view are grounded in the conviction that marriage is created by the physical union between a man and a woman regardless of their intention and cannot be dissolved by either one while the other still lives.

In the final chapter, Shemesh deepens his characterization of the sectarian state of mind as one that combines religious anxiety with legal stringency. The School of Shammai, Shemesh points out, does sometimes echo the sectarians' more stringent approach, but Shemesh cautions us away from explaining such cases as the product of a genetic connection between the sectarians and Shammai. More likely is that the two groups, first the Qumran sectarians and later the School of Shammai, each reflect a widespread halakhah of the Second Temple period from which the Hillelites chose to depart. Shemesh concludes that the story of ancient Jewish law is not just one of differences but also of continuities. The impulse to return to scripture, so prominent in the Dead Sea Scrolls, returns with a vengeance with the rabbis, who ultimately abandon the old Pharisaic reliance on ancestral traditions. The rabbis may have descended from the Pharisees, but they shared a great deal with their forebears among the Sadducees and Essenes as well.

This book offers the satisfaction of an excellent mystery novel. Shemesh turns ancient Jewish legal texts into clues. By collecting and integrating the clues, he is able to reconstruct not only the evolution of particular legal topics among ancient Jewish lawmakers but also the character and history of the lawmakers themselves. In the same way that typical readers of Sherlock Holmes or Hercule Poirot cannot quite follow all the twists and turns of the plot but are certain that the hero-detective has arrived at the correct conclusion, it may sometimes be challenging for Shemesh's readers to independently assess all the details of his text readings, yet readers will feel themselves to be in good hands. One may sometimes wonder, however, whether the trail of ancient Jewish clues is as susceptible to solutions as Shemesh makes it seem. The vagaries of history, not a clever mystery writer, left them for us, and whether we can confidently know the character of the Pharisees and Sadducees or what they legislated is an open question, considering that we do not have clear textual remains from either group. Yet Shemesh's reconstruction is as convincing and as careful as one can get. He has moved beyond the forest of details in which much Qumran and rabbinic scholarship remains to produce a dramatic narrative of halakhah's ancient unfolding.

A number of examples upon which Shemesh draws in Halakhah in the Making come from penal law. This is no coincidence. The subject of his previous book, Punishments and Sins: From Scripture to the Rabbis, is ancient Jewish penal law, with emphasis on the Dead Sea Scrolls and early rabbinic writings. Shemesh is not alone among scholars of halakhah in his interest in punishment—we can see it also in Halbertal's Interpretive Revolutions, Lorberbaum's Image of God, Michelle Hammer-Kossoy's “Divine Justice in Rabbinic Hands” (her 2005 doctoral dissertation at New York University), my Execution and Invention (2006), Devora Steinmetz's Punishment and Freedom (2008), and Ishay Rosen-Zvi's The Rite That Was Not (2008).Footnote ¹⁰ Shemesh's book is less theoretically framed—no Foucault or Dworkin here—and is more conventionally historiographical than some of the other recent works, but all attest that punishment has become one of the leading areas of inquiry in new thinking about halakhah.

Shemesh's introduction begins with biblical background. In the relatively few cases that the Bible imposes individual rather than collective punishments, the punishments consist mainly of civil penalties. When the Bible does call for execution, it rarely is explicit about a method of execution. How the Qumran sectarians and the rabbis each manufacture from these meager scriptural materials a comprehensive system of criminal punishment reveals a great deal about their respective worldviews and the differences between them, proposes Shemesh as the foundation for his study. The first three chapters of Shemesh's book address punishments, and the last five deal with the sins for which they are imposed.

Chapter 1 unravels the mystery of the rabbinic execution method of strangulation. The Bible breathes not a word about strangulation. Neither do any of the Second Temple period Jewish sources, which across the board presume—undoubtedly correctly—that stoning is the Bible's generic method of execution. Why did the rabbis claim that strangulation was the Bible's default capital punishment? Shemesh argues, first, that not all tannaitic texts make such a claim and, second, that the tannaitic texts that devise strangulation do so in order to address an exegetical difficulty in Deuteronomy 22:13–29, which seems unnecessarily to differentiate between a married woman and a betrothed woman who commits adultery. Deuteronomy 22 separates out the case of the married woman to teach that she gets a different punishment, which, according to this rabbinic line of thought, must be strangulation because of its ability to mimic a natural death at the hands of God.

Chapter 2 explores how ancient Jews match a sin with its punishment. Shemesh argues for two matching methods at work in the early rabbinic texts. According to one of these, the four rabbinic executions are alternative avenues, albeit of differing degrees of severity, for arriving at the same destination, which is killing a convicted criminal. But in another—Shemesh argues older—rabbinic stream, each of the four methods of execution represents an entirely separate, independent punishment. Shemesh proceeds to interpret various rabbinic statements as embodying this older conception. In his historical reconstruction, the rabbis develop the later “degree-of-severity” scheme in order to systematize and justify the existing variations in their execution methods.

Chapter 3 contrasts how the Qumran sectarians and the rabbis each interpret the Bible's punishment of excision (karet). Basing themselves on Numbers 15, the Qumran sectarians understand biblical karet to require a flagrant sinner's permanent expulsion from the sect. Shemesh situates this understanding within the broader theology of the sect. A flagrant sinner proves himself to be a true member of the “sons of darkness” and not of the “sons of light”; his expulsion simply reflects his destiny. The rabbis, on the other hand, transform karet from an irreversible divine punishment into a fate relatively easy to escape by means of the human court's punishment. That punishment, argues Shemesh, is lashes (malkut). While the Qumranites see themselves as initiating divine punishment, the rabbis try to avert divine punishment by putting lashes to a new use.

In Chapter 4, Shemesh observes that sources from the Second Temple period add a number of capital crimes to those found within the Bible: treachery (Temple Scroll), improper service within the Temple or improper contact with purities (Temple Scroll, Damascus Document), judicial corruption (Temple Scroll), and intermarriage (Jubilees). In Shemesh's view, the rabbis express opposition—in Mishnah Makkot 1:10's famous reservations about capital punishment, in rigorous evidentiary procedures, and in a relatively limited list of capital crimes—to what they perceive as the excessive enthusiasm for punishment that preceded them.

In Chapter 5, Shemesh digs up an alternative, older approach within rabbinic texts that punishes the murderer not with decapitation, as outlined by Mishnah Sanhedrin, but with whichever of the four execution methods mostly closely approximates the means of murder. Shemesh suggests that this approach, inspired by the measure-for-measure principle popular in the ancient Near East and Second Temple period, reflects a conception of each of the four execution methods as archetypes of death: stoning represents the collapse of organs, burning the destruction of the body itself, decapitation the loss of blood, and strangulation the loss of breath.

What are the biblical sources for the Mishnah's two categories of enticers into idolatry, the masit and the madiah? Shemesh begins Chapter 6 with this question and uses it to solve the long-standing puzzle of what distinguishes the two. He offers a novel solution: nothing! Following the line of interpretation in the Yerushalmi, Shemesh argues that the Mishnah's masit and madiah are not descriptions of two different capital crimes but two phases of the same crime.

Thus far, the capital crimes Shemesh has discussed are all clearly articulated by the Torah, even if most of the time the particular execution method is not. Chapter 7 deals with violations for which the Torah declares the consequence to be death but does not specify that a human court should be the agent behind it. In two such cases, the nonpriest who serves in the Temple and the owner of a habitually goring ox, the Tannaim debate whether the convicted criminal's death should be left to God or taken into human hands. If the latter, which execution does he deserve? Shemesh suggests that underlying the debate about the nonpriest and the ox owner are different approaches to the entire exegetical enterprise of the rabbis. The side that argues for human execution (Rabbi Akiva) bases itself on a formalist philological analysis of the passive verb yumat (“he shall be killed”), while the side that argues divine punishment (Rabbi Yishma'el) calls for scriptural analysis that operates at the level of story and context, not word.

Chapter 8 returns to Mishnah Makkot's list of violations liable for lashes to consider why these fifty or so violations—and these only—appear there. Shemesh asks: Is the list meant to be exhaustive or exemplary? He argues that Mishnah Makkot's composer used Mishnah Keritot as his base text and interpolated into it a variety of mishnahs dealing with prohibited foods and self-mutilation. Shemesh concludes that Mishnah Makkot's list is indeed exhaustive and that its religious and exegetical logic is tightly coherent: One who violates the holiness of his own body will in turn suffer the violation of his body by flogging. The ancient ideology of measure-for-measure, which the tannaitic texts so often try to suppress or transcend, once again returns in the interstices of rabbinic halakhah.

In closing, Shemesh asks a powerful question with respect to the marginal traditions he has unearthed in the Mishnah: Was their eclipse caused by a natural process of forgetting the past or by an agenda of active censorship on the Mishnah's part? If the latter is the case—and Shemesh seems to lean toward this possibility—then the disputes within the Mishnah represent a highly bounded and controlled diversity of opinion falling well short of the pluralism celebrated by 1980s scholarship on the rabbis' revolution at Yavneh. Shemesh's work highlights instead the hegemonic nature of the Mishnah's maḥloket (dispute).

The broader methodological question at stake, which Shemesh addresses in his epilogue, is the framework one chooses for interpreting the genesis and evolution of law. The impression that emerges from this book is that Qumran law was driven more by ideology and rabbinic law more by exegesis. Even for strangulation, the execution method fabricated full cloth by the rabbis, Shemesh manages to find biblical roots. Shemesh has the heart of an exegete, and he sees the rabbis in this vein. But it would be a mistake to put Shemesh in the camp of those who see purely internal, textual, or exegetical factors propelling rabbinic halakhah, since his argument is that the rabbis' loyalty to scripture's punishments was itself religiously driven, a reaction against Qumran's harsh dualism. His discussions often begin with scriptural sources and give most of their attention to rabbinic exegesis, but he never loses sight of the larger cultural network in which rabbinic law sits. That said, this larger cultural network tends to be a Jewish one in which all players seem to be a little too conveniently connected. Do the Qumran sectarians overlap to such an extent with the Sadducees? Do their laws in some cases represent widespread Jewish practice of the period? Does it stand to reason that they left a legible imprint upon the Mishnah, which, after all, came centuries later? He deals little with the diverse world of the Roman Empire and also gives scant attention to the politics that surround contemporary scholarship, including his own. For a highly politicized topic such as capital punishment, especially given the long and painful history of Jewish–Christian tensions surrounding the execution of Jesus, one feels the absence.

Shemesh's books take their place among emerging efforts to blend the surgical text study that has always characterized halakhah with the conceptual concerns of twenty-first century historiography. Shemesh's text work in rabbinics will no doubt satisfy the exacting eyes of the Israeli Talmudists; his engagement in Qumran text debates has already made him an important player in the international scene of Scrolls scholars; his efforts to characterize the worldview of the ancient Jewish authors make him at home among American culture critics as well. Shemesh's books help us to reclaim halakhah—both in the sense of reconstructing its history and in the sense of reconceiving what halakhah has meant and what it continues to mean within the broader enterprise of Jewish culture. That scholars like Shemesh, and more recently minted ones like Wimpfheimer, Simon-Shoshan, Cohn, and Kanarek, are examining halakhah in conjunction with aggadah indicates less that halakhah has become subordinate to aggadah, as Bialik feared, than that halakhah is getting its due as the rich and complicated legacy that it is.